[Federal Register: April 16, 2009 (Volume 74, Number 72)]
[Notices]
[Page 17648-17650]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap09-29]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 09-C0004]
Marshalls of MA, Inc., Provisional Acceptance of a Settlement
Agreement and Order
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
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SUMMARY: It is the policy of the Commission to publish settlements
which it provisionally accepts under the Consumer Product Safety Act in
the Federal Register in accordance with the terms of 16 CFR 1118.20(e).
Published below is a provisionally-accepted Settlement Agreement with
Marshalls of MA, Inc., containing a civil penalty of $235,000.00.
DATES: Any interested person may ask the Commission not to accept this
agreement or otherwise comment on its contents by filing a written
request with the Office of the Secretary by May 1, 2009.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 09-C0004, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 502, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Seth B. Popkin, Lead Trial Attorney,
Division of Compliance, Office of the General Counsel, Consumer Product
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7612.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: April 9, 2009.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Marshalls of MA, Inc.
(``Marshalls'') and the staff (``Staff'') of the United States Consumer
Product Safety Commission
[[Page 17649]]
(``Commission'') enter into this Settlement Agreement (``Agreement'').
The Agreement and the incorporated attached Order (``Order'') settle
the Staff's allegations set forth below.
Parties
2. The Commission is an independent Federal regulatory agency
established pursuant to, and responsible for the enforcement of, the
Consumer Product Safety Act, 15 U.S.C. 2051-2089 (``CPSA'').
3. Marshalls is a corporation organized and existing under the laws
of Massachusetts, with its principal offices located in Framingham,
Massachusetts. At all times relevant hereto, Marshalls sold apparel.
Staff Allegations
4. From July 2007 to January 2008, Marshalls held for sale and/or
sold various quantities of the following children's upper outerwear
products with drawstrings at the hood or neck: Apollo Active Wear
girls' hooded jackets; Scope Imports boys' hooded sweatshirts; Liberty
Apparel Jewel girls' hooded sweatshirts; Rebelette girls' hooded
sweatshirts; Kids with Character bongo jackets; GWB II French Fries/
Heartbreakers Club hooded henleys; Siegfried & Parzival Karl Kani
sweatshirts; and U.S. Design Group Request Jeans sweatshirts. From July
to August, 2008, Marshalls held for sale and/or sold the following
children's upper outerwear products with drawstrings at the hood or
neck: nZania/Element hoodies; and Seven Apparel Group hooded
sweatshirts. The products identified in this paragraph are collectively
referred to herein as ``Sweatshirts.'' These Sweatshirts
identifications correspond to and are coextensive with information
Marshalls reported to the Staff about the Sweatshirts.
5. Marshalls sold Sweatshirts to consumers.
6. The Sweatshirts are ``consumer product[s],'' and, at all times
relevant hereto, Marshalls was a ``retailer'' of those consumer
products, which were ``distributed in commerce,'' as those terms are
defined in CPSA sections 3(a)(5), (8), and (13), 15 U.S.C. 2052(a)(5),
(8), and (13).
7. In February 1996, the Staff issued the Guidelines for
Drawstrings on Children's Upper Outerwear (``Guidelines'') to help
prevent children from strangling or entangling on neck and waist
drawstrings. The Guidelines state that drawstrings can cause, and have
caused, injuries and deaths when they catch on items such as playground
equipment, bus doors, or cribs. In the Guidelines, the Staff recommends
that there be no hood and neck drawstrings in children's upper
outerwear sized 2T to 12.
8. In June 1997, ASTM adopted a voluntary standard, ASTM F1816-97,
that incorporated the Guidelines. The Guidelines state that firms
should be aware of the hazards and should be sure garments they sell
conform to the voluntary standard.
9. On May 19, 2006, the Commission posted on its Web site a letter
from the Commission's Director of the Office of Compliance to
manufacturers, importers, and retailers of children's upper outerwear.
The letter urges them to make certain that all children's upper
outerwear sold in the United States complies with ASTM F1816-97. The
letter states that the Staff considers children's upper outerwear with
drawstrings at the hood or neck area to be defective and to present a
substantial risk of injury to young children under Federal Hazardous
Substances Act (``FHSA'') section 15(c), 15 U.S.C. 1274(c). The letter
also notes the CPSA's section 15(b) reporting requirements.
10. Marshalls informed the Commission that there had been no
incidents or injuries from the Sweatshirts.
11. Marshall's distribution in commerce of the Sweatshirts did not
meet the Guidelines or ASTM F1816-97, failed to comport with the
Staff's May 2006 defect notice, and posed a strangulation hazard to
children.
12. Recalls have been announced regarding the Sweatshirts as
warranted.
13. Marshalls had presumed and had actual knowledge that the
Sweatshirts distributed in commerce posed a strangulation hazard and
presented a substantial risk of injury to children under FHSA section
15(c)(1), 15 U.S.C. 1274(c)(1). Marshalls had obtained information that
reasonably supported the conclusion that the Sweatshirts contained a
defect that could create a substantial product hazard or that they
created an unreasonable risk of serious injury or death. CPSA sections
15(b)(3) and (4), 15 U.S.C. 2064(b)(3) and (4), required Marshalls to
immediately inform the Commission of the defect and risk.
14. Marshalls knowingly failed to immediately inform the Commission
about the Sweatshirts as required by CPSA sections 15(b)(3) and (4), 15
U.S.C. 2064(b)(3) and (4), and as the term ``knowingly'' is defined in
CPSA section 20(d), 15 U.S.C. 2069(d). This failure violated CPSA
section 19(a)(4), 15 U.S.C. 2068(a)(4). Pursuant to CPSA section 20, 15
U.S.C. 2069, this failure subjected Marshalls to civil penalties.
Marshalls's Response
15. Marshalls denies the Staff's allegations set forth above,
including, but not limited to, any allegation that Marshalls failed
timely to notify the Commission in accordance with section 15 of the
CPSA.
16. Marshalls requires that its vendors represent and warrant that
all products sold to Marshalls comply with all applicable regulations,
standards and requirements.
17. Marshalls promptly notified the Commission pursuant to section
15 of the CPSA without first being contacted by the Commission upon
verifying that certain garments contained drawstrings at the hood or
neck.
18. Marshalls fully cooperated with the Commission in providing
information necessary for the Commission to determine, with the vendor,
whether a recall was warranted and whether the vendor had sold affected
garments to any other retailers.
19. Marshalls has entered into the Agreement for settlement
purposes only, to avoid incurring additional expenses and the
distraction of litigation. The Agreement and Order do not constitute
and are not evidence of any fault or wrongdoing by Marshalls.
Agreement of the Parties
20. Under the CPSA, the Commission has jurisdiction over this
matter and over Marshalls.
21. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Marshalls, or a
determination by the Commission, that Marshalls knowingly violated the
CPSA.
22. In settlement of the Staff's allegations, Marshalls shall pay a
civil penalty in the amount of two hundred thirty-five thousand dollars
($235,000.00) within twenty (20) calendar days of service of the
Commission's final Order accepting the Agreement. The payment shall be
by check payable to the order of the United States Treasury.
23. Upon provisional acceptance of the Agreement, the Agreement
shall be placed on the public record and published in the Federal
Register in accordance with the procedures set forth in 16 CFR
1118.20(e). In accordance with 16 CFR 1118.20(f), if the Commission
does not receive any written request not to accept the Agreement within
fifteen (15) calendar days, the Agreement shall be deemed finally
accepted on the sixteenth (16th) calendar day after the date it is
published in the Federal Register.
24. Upon the Commission's final acceptance of the Agreement and
[[Page 17650]]
issuance of the final Order, Marshalls knowingly, voluntarily, and
completely waives any rights it may have in this matter to the
following: (1) An administrative or judicial hearing; (2) judicial
review or other challenge or contest of the validity of the Order or of
the Commission's actions; (3) a determination by the Commission of
whether Marshalls failed to comply with the CPSA and its underlying
regulations; (4) a statement of findings of fact and conclusions of
law; and (5) any claims under the Equal Access to Justice Act.
25. The Commission may publicize the terms of the Agreement and the
Order.
26. The Agreement and the Order shall apply to, and be binding
upon, Marshalls and each of its successors and assigns.
27. The Commission issues the Order under the provisions of the
CPSA, and violation of the Order may subject Marshalls to appropriate
legal action.
28. The Agreement may be used in interpreting the Order.
Understandings, agreements, representations, or interpretations apart
from those contained in the Agreement and the Order may not be used to
vary or contradict their terms. The Agreement shall not be waived,
amended, modified, or otherwise altered without written agreement
thereto executed by the party against whom such waiver, amendment,
modification, or alteration is sought to be enforced.
29. If any provision of the Agreement and the Order is held to be
illegal, invalid, or unenforceable under present or future laws
effective during the terms of the Agreement and the Order, such
provision shall be fully severable. The balance of the Agreement and
the Order shall remain in full force and effect, unless the Commission
and Marshalls agree that severing the provision materially affects the
purpose of the Agreement and the Order.
Marshalls of MA, Inc.
Dated: March 2, 2009.
By:
Ann McCauley,
Secretary, Marshalls of MA, Inc., 770 Cochituate Road, Framingham,
MA 01701.
Dated: March 3, 2009.
By:
Eric A. Rubel, Esq.,
Arnold & Porter LLP, 555 12th Street, NW., Washington, DC 20004-
1206.
Counsel for Marshalls of MA, Inc.
U.S. Consumer Product Safety Commission Staff.
Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik,
Assistant General Counsel, Division of Compliance, Office of the
General Counsel.
Dated: March 6, 2009.
By:
Seth B. Popkin,
Lead Trial Attorney, Division of Compliance, Office of the General
Counsel.
Order
Upon consideration of the Settlement Agreement entered into between
Marshalls of MA, Inc. (``Marshalls'') and the U.S. Consumer Product
Safety Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Marshalls, and it
appearing that the Settlement Agreement and the Order are in the public
interest, it is
ordered, that the Settlement Agreement be, and hereby is, accepted;
and it is
further ordered, that Marshalls shall pay a civil penalty in the
amount of two hundred thirty-five thousand dollars ($235,000.00) within
twenty (20) calendar days of service of the Commission's final Order
accepting the Agreement. The payment shall be made by check payable to
the order of the United States Treasury. Upon the failure of Marshalls
to make the foregoing payment when due, interest on the unpaid amount
shall accrue and be paid by Marshalls at the Federal legal rate of
interest set forth at 28 U.S.C. 1961(a) and (b).
Provisionally accepted and provisional Order issued on the 8th
day of April, 2009.
By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. E9-8712 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P